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Vacating a decision by the state’s Intermediate Court of Appeals, the Supreme Court of Hawaii recently held that an employee’s claim for the aggravation of his asthma resulting from alleged work-related exposure to volcanic smog—a combination of weather, wind conditions and volcanic activity—and commonly referred to within the state as “vog,” was compensable. Quoting Larson’s Workers’ Compensation Law, the high court found that under Haw. Rev. Stat. § 386-3(a), the "effort or strain" the employee experienced with his respiratory condition as a result of vog exposure occurred during the course of the employment and as an ordinary or usual incident of the work, given that his employment required strenuous activity and the strenuous activity caused the exacerbation of his asthma. The court reasoned also that the employer failed to present sufficient evidence so as to overcome the presumption, provided under Haw. Rev. Stat. § 386-85, that the aggravation of the employee’s asthma was proximately caused by the employment.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Van Ness v. State Dep’t of Educ., 2014 Haw. LEXIS 31 (Jan. 23, 2014) [2014 Haw. LEXIS 31 (Jan. 23, 2014)]
See generally Larson’s Workers’ Compensation Law, § 52.04 [52.04]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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